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All eyes are on the Supreme Court as it gets ready to issue its decisions in the cases of Hollingsworth v. Perry, the challenge to California’s Proposition 8, and United States v. Windsor, the challenge to the federal Defense of Marriage Act. The Court heard oral arguments on both cases in late March.

The intense media focus on these cases has obscured the many other cases that are before the Supreme Court. One in particular seems notable because it relates to the First Amendment. In the case of Agency for International Development v. Alliance for Open Society International, Inc., the Court will decide whether a provision in the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 violates the First Amendment by requiring an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas.

What this case really shows, however, is that conservatives are clueless, not only about the First Amendment, but also about the Constitution, the proper role of government, and a free society.

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (H.R.1298, P.L. 108-25), known as the Leadership Act, but also known as the President’s Emergency Plan for AIDS Relief or PEPFAR, was enacted in May 2003 by a wide bipartisan margin. It authorized up to $15 billion over five years to address HIV/AIDS, tuberculosis, and malaria in low- and middle-income countries through the Global Fund to Fight AIDS, Tuberculosis and Malaria, through nongovernmental organizations (including faith-based and community-based organizations), and through coordination between international organizations for the prevention, treatment, monitoring, and control of HIV/AIDS, tuberculosis, and malaria. The Act established the State Department Office of the Global AIDS Coordinator to oversee all international AIDS funding and programming.

In July 2008, the Act was renewed, revised, and expanded as the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (H.R.5501, P.L. 110-93). This time there was some Republican opposition in the House (75-114), but not much in the Senate. And, of course, the Republican George W. Bush again signed it into law. The expansion more than tripled the initiative’s funding to $48 billion through fiscal year 2013.

At issue is not the constitutionality, appropriateness, or cost to the taxpayers of the U.S. government’s funding the prevention and treatment of infectious diseases in Africa or anywhere else, but the Act’s mandate that organizations receiving U.S. funds have an official policy against prostitution and sex trafficking. That is true even if an organization gets some of its funding from private sources or foreign governments.

None of the organizations taking part in the program promotes prostitution or sex trafficking. Some of them, however, do not want to formally declare their opposition; they prefer instead to remain neutral lest their ability to work with prostitutes and those caught up in sex slavery be impaired.

A lawsuit was filed in 2005 alleging that “conditioning Leadership Act funding on the affirmative adoption of a policy opposing prostitution violated the First Amendment by compelling grantees to adopt and voice the government’s viewpoint on prostitution, and by restricting grantees from engaging in privately funded expression that the Agencies might deem insufficiently opposed to prostitution.”

A U.S. District Court in New York issued a preliminary injunction that blocked the federal government from enforcing the anti-prostitution policy requirement. The U.S. Court of Appeals for the Second Circuit affirmed the preliminary injunction, “finding that the federal regulation of fund recipients went ‘well beyond’ permissible conditions attached to government spending.” The condition “compels recipients to espouse the government’s viewpoint” in violation of the free speech guarantee of the First Amendment.

During the appeal process, “the federal agencies running the program issued guidelines allowing the organizations to continue taking part in the program if they made the required policy declaration, but permitting them to set up an independent affiliate that did not have to follow the policy.” The case then returned to the district court, which concluded that the guidelines did not affect its previous determination that the policy requirement compelled speech. The Second Circuit in 2011 again upheld the district court’s order against enforcement of the funding condition, “finding that the message mandate fell ‘well beyond’ the kind of conditions that the First Amendment permits the government to lay down.”

The U.S. solicitor general petitioned the Supreme Court to hear the case, arguing that “the regulations are well within Congress’s authority to attach conditions to federal spending.”

“The heart of the dispute,” as explained by law professor Stephen Wermiel, “is a critical question: are the requirements attached to the federal program simply an example of conditions that the government may impose on federal spending, or do the regulations go too far because they compel organizations receiving funds to espouse the government’s point of view about prostitution?” The government argues that Congress can require organizations that received federal funds to espouse its policy views; the respondents argue that Congress can’t force them to espouse the government’s view when the program is not about the view, but doing a particular job.

Nine briefs of amicus curiae were filed by various liberal, libertarian, and conservative groups in support of the respondents; only two were filed in behalf of the government.

Although the case has been characterized as a First Amendment one, there is an old saying that is relevant here: He who pays the piper calls the tune. And as we already know all too well, there are always strings attached to any government funding.

But regardless of how the Court rules, the case itself is a perfect example of how conservatives are clueless about the Constitution, the proper role of government, and a free society.

Conservatives who argue that requiring an anti-prostitution mandate to receive federal funds is unconstitutional have apparently never stopped to consider that it is the disbursement of the federal funds in the first place that is unconstitutional. Likewise, conservatives who argue that requiring an anti-prostitution mandate to receive federal funds is not unconstitutional have apparently never stopped to consider that it is the disbursement of the federal funds in the first place that is unconstitutional.

This is one of the main points that distinguish libertarians from conservatives. Conservatives never seem to have an issue with this government program or that government agency unless the program or agency goes against some conservative position.

Just consider the following examples.

Conservatives criticize NPR and the Corporation for Public Broadcasting (CPB) for espousing liberal views or having a liberal bias, but not because the federal government has no business being involved in broadcasting.

Conservatives criticize the National Endowment for the Arts (NEA) for funding pornographic art or photography, but not because the federal government has no business funding the arts.

Conservatives criticize public education for promoting political correctness, teaching environmentalism and evolution, and failing to educate students, but not because the federal government has no business funding education.

Conservatives criticize Medicare for waste, fraud, and abuse, but not because the federal government has no business being involved in health care.

Conservatives criticize federal funding for Planned Parenthood because the organization performs abortions, but not because the federal government shouldn’t be funding private organizations to begin with.

Conservatives criticize the Department of Housing and Urban Development (HUD) for the gun violence in, and deplorable condition of, public housing, but not because the federal government has no business constructing public housing in the first place.

Conservatives criticize the abuses of the Transportation Security Administration (TSA), but not because the federal government has no business providing security for private companies.

Conservatives criticize government regulations for being excessive, burdensome, or costly, but not because the federal government should not be regulating businesses in the first place.

Conservatives criticize the criminal acts of soldiers in Iraq and Afghanistan, but not because the federal government’s wars in those countries were criminal from the day they began.

Conservatives criticize the Environmental Protection Agency (EPA) for issuing rules and mandates that harm property owners and businesses, but not because the federal government has no constitutional authority to have an EPA in the first place.

Conservatives criticize the part that Fannie Mae and Freddie Mac played in the housing crisis, but not because the federal government should have nothing to do with home mortgages.

Conservatives criticize gun-control legislation for being strict, unreasonable, or unenforceable, but not because the federal government has no authority to pass any gun-control legislation whatsoever.

Conservatives are clueless. They have no idea what the Constitution says or doesn’t say, they have no idea what the role of government should or shouldn’t include, and they have no idea that a free society doesn’t mean a government run by conservatives.

Reading List

Prepared by Richard M. Ebeling

Austrian economics is a distinctive approach to the discipline of economics that analyzes market forces without ever losing sight of the logic of individual human action. Two of the major Austrian economists in the 20th century have been Friedrich A. Hayek, who won the Nobel Prize in Economics, and Ludwig von Mises. Posted below is an Austrian Economics reading list prepared by Richard M. Ebeling, economics professor at Northwood University in Midland and former president of the Foundation for Economic Education and vice president of academic affairs at FFF.